After months of buildup, the Supreme Court today surprised many observers by declining to review all seven same-sex marriage cases currently before it. As a result, gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia, and Vermont will be able to marry immediately. In addition, couples in six other states located in the Second, Fourth, Seventh, and Tenth Circuits (Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming) will now benefit from the new legal vulnerability of their respective states’ bans.
Why did the justices choose to punt the issue for now? One possible explanation lies in the absence of dissension in the Courts of Appeals that have considered the issue. The Supreme Court has been more likely to review cases where a circuit split exists, because (1) consideration by multiple circuits serves as a proxy for legal significance, and (2) resolving the conflict promotes the goal of uniformity in interpretation of federal law. Moreover, the Court tends to grant review when it wants to reverse the lower court’s holding, as opposed to when it agrees with the lower court. Given the presence of pending appellate litigation in the Fifth (Texas) and Sixth (Tennessee) Circuits, the Court might have decided that it could wait for the possible emergence of a ruling upholding a state ban.
This explanation, however, proves unsatisfying. Intercircuit conflict does correlate with a greater likelihood of review, but it is neither a necessary nor a sufficient condition for review. The Court has taken cases where the legal issue was deemed so important that it merited review despite the absence of a circuit split, and not all of these cases involved singular historical events. Indeed, when the Court has desired to expand the scope of litigation, it has asked the parties for rebriefing and reargument, as it did in the Citizens United litigation. So when the justices really want to address an issue, they find a way, intercircuit agreement notwithstanding. It is hard to believe that six justices (under the Court’s rules, only four votes are needed to grant review) did not find the substantive issue sufficiently important to merit review.
A second explanation involves strategic decision making surrounding the consummate swing justice on the Roberts Court, Anthony Kennedy. As noted earlier, it takes only four votes to get a case accepted, but a forward-thinking justice would base his decision at least in part on whether he expected his side to prevail on the merits. Yes, the Court is more likely to hear cases to reverse the lower court than to affirm it, but the justices favoring same-sex marriage could have found reasons to justify a grant to affirm–removing uncertainty in states where bans remain unchallenged, for one. Perhaps neither side felt confident that it had Justice Kennedy’s vote. On one hand, Justice Kennedy has authored several landmark rulings in favor of gay rights, and one could understand why his conservative brethren might seek to keep another same-sex marriage case away from him. At the same time, however, he has been a stalwart participant in the Rehnquist and Roberts Courts’ federalism revolution, and a ruling on same-sex marriage would force a conflict between his rhetoric about government policies that deny LGBT individuals basic human dignity, and his rhetoric about the importance of state sovereignty.
Perhaps Justice Kennedy knows how he would square these conflicting considerations, but more to the point, perhaps his colleagues on the Court don’t know. As such, each bloc might prefer to take the risk-averse course and deny review. The conservative bloc avoids a ruling that legalizes same-sex marriage nationwide, while the liberal bloc avoids a ruling that leaves the issue to the states.
A third explanation contends that the Supreme Court felt no need to take a case to make a grand statement on marriage equality because it had already issued its grand statement last year in the Windsor case. By this reckoning, the logic underpinning the Court’s decision to strike down part of the Defense of Marriage Act could not be confined to the question of whether the federal government could refuse to confer spousal benefits upon someone recognized as married under her home state’s law. Rather, as Justice Antonin Scalia predicted in his dissenting opinion, the Windsor holding compelled the rejection of state bans on same-sex marriage. This was the message received by the overwhelming majority of lower court judges–many of whom cited Scalia’s Windsor dissent, some with barely concealed glee–who ruled on challenges to same-sex marriage bans. As Amy Davidson noted at the New Yorker, had any of these lower court rulings overstepped in their reading of Windsor, the Supreme Court had the opportunity here to set things straight (my bad not-quite-intended pun). Its decision not to decide might not produce a landmark ruling destined for the next generation of constitutional law textbooks, but it might have a landmark-sized impact nonetheless.
All of these explanations could be mooted imminently by a Fifth or Sixth Circuit ruling upholding a state ban. At that point, the Court might decide it has little choice but to intervene. But it is difficult to imagine the Court’s retreating from what it announced today, even if the opportunity to retreat were to arise. When it comes to marriage equality, there’s no putting the toothpaste back into the tube. Opponents of today’s ruling know as much, which is why their anguish is especially pronounced. Will supporters of marriage equality eventually get their triumphant Supreme Court ruling explicitly proclaiming same-sex marriage bans unconstitutional? Perhaps. What has become more probable is that the success of the effort will not hinge on their getting that ruling.
Yesterday was Constitution Day, on which Americans celebrate the anniversary of the signing of the U.S. Constitution, and institutions of higher learning throughout the land scramble for Constitution-themed programming, lest they jeopardize their federal funding. As for how we celebrate, well, let’s just say it’s a work in progress. There are no fireworks, or bacchanalia of feasting and football, or parades to commemorate veterans or to remember the accomplishments of organized labor. We don’t celebrate our foundational political document in the way that Jews celebrate theirs, with song, drink, and dancing with Torah scrolls. Perhaps the most appropriate celebration, barring adoption of a secular analogue to the Simchat Torah festivities, simply involves reflection on the Constitution. In that spirit, I offer some reflection:
- The Constitution reflected the most sophisticated political philosophy of its era, as well as lessons learned from history, both ancient and very recent. So why is so much of the celebration devoted to a mindless veneration that refuses to acknowledge that we have an advantage over James Madison and company, namely 200+ years of practical experience with, and scholarship about, political institutions?
- Make no mistake about it: when it comes to thinking about the Constitution, the American public is decidedly prone to mindless veneration. Just as Americans proclaim that the U.S. health care system is the best in the world, despite the substantial body of evidence to the contrary, we resist considering the prospect that other institutional arrangements might produce better governance. When our governance does not address the pressing issues of the day, or addresses them in a dysfunctional manner, we tend to attribute blame to individual political actors or parties, or to the political class as a whole. The implicit assumption is that it’s easier to make flawed human beings less flawed, or to improve our ability to identify and empower less flawed human beings, than it is to rethink the environment in which these flawed human beings operate. But the multitude of failed attempts throughout human history to perfect human behavior, coupled with what students of government understand about the significance of institutional design, should lead us to question that assumption.
- Constitution Day’s focus on the text of the document–a variation on the Protestant principle of sola scriptura–underplays the importance of everything else that has come to shape constitutional understandings since 1787. These understandings reflect centuries’ worth of judicial interpretation, historical practices and traditions, and consensually accepted norms. States, for example, are obliged to respect virtually all of the protections enumerated in the Bill of Rights, but not because the Constitution’s text clearly commands that obligation. Rather, the incorporation of the Bill of Rights has resulted from an interpretation of the Fourteenth Amendment’s Due Process Clause that we (OK, Justice Thomas, not you) have accepted for some time. Try to envision states no longer bound to abide by the Bill of Rights, and you’ll see why the gloss placed on the Constitution should not be overlooked in favor of a focus on the original text alone.
- Finally, if you’re not in the mood to celebrate the Constitution, I’d recommend two thought-provoking books by Sanford Levinson: Our Undemocratic Constitution (2006) and Framed (2013).
Now go out and take advantage of those post-Constitution Day sales!
On Thursday, the D.C. Circuit Court of Appeals agreed to rehear the latest challenge to the Affordable Care Act (ACA) en banc (with participation of all of the circuit’s judges, as opposed to the standard three-judge panel). In so doing, it illustrated why breaking out your victory celebration midway through the second quarter of a game is ill-advised.
Opponents of the Affordable Care Act thought they had much to celebrate earlier this summer when a D.C. Circuit Court of Appeals panel held that the Act’s subsidies for health insurance were available only to purchasers who obtained their insurance through a state-run exchange. Under this reading, which relied on a curiously rigid application of textualism that textualists themselves normally reject, those who bought from the federal exchange because their home states declined to create their own exchanges would be ineligible to receive the subsidy. If the ruling were to hold, it would fatally undermine Obamacare by stripping out the subsidies that make insurance affordable for millions of people who did not previously have insurance, but are now required to do so by the Act’s individual mandate. Lamentations and rending of garments, under those circumstances, would be an appropriate response for backers of Obamacare, not to mention the several million people who would lose their affordable health insurance.
As it turns out, though, a Fourth Circuit Court of Appeals panel rejected the argument that prevailed in the D.C Circuit, thereby generating a split among the circuits that increases the likelihood that the Supreme Court will grant review. The ACA opponents from the Fourth Circuit quickly petitioned the Supreme Court for review, in the hopes that the Court wouldn’t pass on a second opportunity to deliver a fatal blow to Obamacare. But the plan to fast-track the case to the Supreme Court was threatened by the Obama administration’s petition to the D.C. Circuit to rehear the case en banc, where a sizable majority of Democratic appointees (unlike the Republican majority on the panel that heard the case earlier) would be likely to reverse the panel’s holding. A ruling by the whole circuit in favor of the administration’s position would eliminate the circuit split and improve the odds that the Supreme Court would pass on the issue altogether.
To prevent this scenario, ACA opponents had to convince the D.C. Circuit not to agree to rehear the case, thereby preserving the circuit split. While the petition requesting review of the Fourth Circuit’s holding argued that Supreme Court review is crucial to resolve uncertainty about the continuing legality of subsidies, the argument against rehearing in the D.C. Circuit claimed that en banc review is unnecessary because the issue of statutory interpretation addressed by the panel review does not rise to the level of “exceptional importance” necessary to justify en banc review. Alternatively, had the Supreme Court granted review of the Fourth Circuit decision before a ruling on the D.C. Circuit rehearing petition could be issued, the en banc petition would have been left for naught. Thursday’s announcement precluded that possibility as well.
But ACA supporters might be advised to avoid excessively celebrating their recent good news. The absence of a circuit split decreases the probability of Supreme Court review, but not to zero. The Court could decide that the issue is sufficiently important to merit review even if all circuits that have spoken so far agree on the underlying legal issue. Should the Court go this route, we will be left with several cliffhangers. What will Justice Scalia’s brand of textualism lead him to do when confronted with a law he despises? Will Justice Kennedy, who does not typically share Scalia’s commitment to this interpretive approach, go along for the ride? Will Chief Justice Roberts continue to act strategically, as he had in the first round of Affordable Care Act litigation, in the face of the prospect of millions of people being stripped of affordable health insurance? The announcement of the en banc hearing reduces, but does not eliminate, the possibility that folks on both sides will face some anxiety until we eventually receive answers to these questions. As such, ACA supporters, as well as opponents, might want to wait before dumping the Gatorade buckets on the legal teams fighting for their respective positions.
My favorite example of mindlessly formalistic, ruthlessly result-oriented textual interpretation comes from George Costanza. In the “Bubble Boy” episode of “Seinfeld”‘s fourth season, George denied his opponent a win in Trivial Pursuit based on an obvious typo. What frustrated George’s opponent so much was the transparent bad faith displayed by George, who knew perfectly well that Spain was not invaded in the 8th century by the Moops. Today, a DC Circuit Court of Appeals panel struck down crucial Affordable Care Act (ACA) health insurance subsidies, based on a literalist reading of a statutory provision that renders the rest of the statute absurd and defies the understanding of every participant in the legislative debate about the availability of tax credits for people who bought their insurance through the federal exchange because their states refused to set up their own exchanges. My advice to the judges in the majority in Halbig v. Burwell: when your reasoning closely resembles George Costanza’s, you might need to rethink your position (“do the opposite”?).
* First off, a trip to the Wayback Machine:
Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind – ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.
This quotation comes from Justice Antonin Scalia’s majority opinion in Employment Division v. Smith (1990), in which the Court held that the First Amendment’s Free Exercise Clause did not protect the sacramental use of peyote. I was curious as to whether the Hobby Lobby majority opinion, which 2014 Scalia joined, would acknowledge the existence of 1990 Scalia’s statement. Justice Samuel Alito did quote Smith briefly, but otherwise his opinion did its level-headed best to ignore its existence. I also wondered whether 2014 Scalia would write separately to respond to 1990 Scalia. I didn’t really expect 2014 Scalia to address the matter; that would take a certain level of self-questioning that would be out of character for him. But part of me hoped that 2014 Scalia would say some combination of these things:
(1) I was wrong then, but the Court is right now.
(2) Smith was different because it involved a constitutional claim, while Hobby Lobby involved a statutory claim under the 1993 Religious Freedom Restoration Act (RFRA).
(3) I was right in Smith, but the Court has upheld the validity of the RFRA (as applied to federal action) and follow-up legislation in 2000. As such, I’m bound to adopt the Court’s current position.
Then again, I hope for all kinds of things….
* Once again, the Roberts Court’s guiding principle–The Bossman Always Wins–predicts an outcome. The owners of the “closely held” corporation have religious rights, but their thousands of employees do not.
* Alito displays a curious selectivity when it comes to which slippery slopes worry him. He writes that under the Obama administration’s view, “RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question–for example, third-trimester abortions or assisted suicide,” despite the absence of any inkling that anyone might request such a requirement. But he’s dismissive of the prospect that granting RFRA rights to Hobby Lobby regarding its objection to IUDs and Plan B would produce a flood of requests for exemptions from other federal mandates, despite ample evidence that such requests are already being made.
* Politically, both sides get something. Religious conservatives get to celebrate what they see as a victory against forces seeking to quash religious liberty. Opponents of the Affordable Care Act get to celebrate a blow against Big Government. And Democrats get to enjoy the electoral gift that has fallen into their laps.
* Finally, I find persuasive Joey Fishkin’s argument at Balkinization that the case, at its heart, was really about “the politics of recognition”:
It is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46).
Most of the opposition to the Supreme Court’s ruling in the Hobby Lobby case has focused on the majority’s position that closely held for-profit corporations have religious rights under the 1993 Religious Freedom Restoration Act (RFRA). If a for-profit corporation can claim a religion-based exemption from the Affordable Care Act’s (ACA) requirement that insurance plans cover all FDA-approved contraception, why can’t it claim similar exemptions from anti-discrimination law, or from covering other forms of medical treatment? Justice Samuel Alito’s majority opinion takes great pains to deny that its logic might inspire a flood of RFRA litigation. But is this disclaimer persuasive? More broadly, is Hobby Lobby likely to tangibly transform the relationship between religion and the state? Or will it be an opinion that portends more than it delivers substantially, much as US v. Lopez did with respect to federalism? The answer will depend on how several other questions are addressed:
- Can the logic of the Court’s ruling constrain future RFRA claims? In dissent, Justice Ruth Bader Ginsburg asks whether “the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?”
Alito dismisses this slippery slope on two grounds. The first is that employers had not sought religion-based exemptions to Affordable Care Act requirements other than contraception. Fair enough, but Alito ignores the prospect that employers might have wanted to see how the Hobby Lobby and Conestoga Wood (another for-profit corporate plaintiff) challenges fared before investing resources in litigation. Now that the Court has opened the door, employers might feel emboldened to push what previously would have been considered specious claims.
The second lies in the requirements of the RFRA, which states that laws meant to apply generally may not “substantially burden” one’s exercise of religion unless they serve a compelling government interest and employ the least restrictive means of furthering that interest. For the Hobby Lobby majority, the dissent’s parade of horribles is far-fetched because for each example, one could readily demonstrate the strength of the government’s interest and the absence of means that do not inhibit religious belief. In contrast, the majority assumed the compelling interest behind the contraceptive mandate (Anthony Kennedy wrote separately to make his recognition of this interest explicit) but held that the existence of a work-around for religious institutions and non-profit corporations demonstrated the availability of less restrictive means. What is unclear is why this logic would preclude exemptions in the situations described by the dissent. If, to use Ginsburg’s words, “let the government pay” constitutes a less restrictive means, then employers will be able to claim religious sanction to off-load all kinds of obligations.
- Hobby Lobby objected to being required to cover four types of contraception that prevent fertilized eggs from implanting in the uterus, but it did not object to covering the other sixteen FDA-approved methods covered under the ACA. The majority notes this information as part of its attempt to minimize the scope of the ruling, but there’s nothing in the logic of the opinion to limit its effect this way. Once an employer posits a sincerely held religious belief–and no one on the Court expressed any desire to doubt the sincerity of employers’ expressions of belief–that is substantially burdened by a policy, the stringent RFRA test kicks in. Now that it has won, what will Hobby Lobby and Conestoga Wood do next? The answer will say much about what the Court’s ruling today will ultimately mean.
- The majority in Hobby Lobby stated that the RFRA exemption covered only “closely held” corporations, presumably because they, unlike publicly traded companies, are capable of holding a unified position on what the owners’ religious consciences dictate. But the definition of “person” used by the majority opinion makes no distinction based on how ownership is distributed. According to the Dictionary Act (yes, there is an act of Congress with this title), it includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The majority’s limitation of its holding to closely held corporations, then, rests solely on an empirical expectation. Should a publicly traded corporation assert an RFRA claim, on what basis could a court reject it, given Monday’s ruling?
- One less restrictive means proposed by the Court is the one already offered by the Obama administration to religious institutions and non-profits raising religious objections: have insurers or third-party benefit administrators provide contraception coverage at no cost to the employee. The problem here is that this work-around itself is currently being litigated, as dozens of suits have been brought by employers claiming that any involvement in arranging for contraception coverage, even if through a third-party, implicates them in immoral behavior. Does the Court’s mention in Hobby Lobby of the work-around for non-profits signals a lack of sympathy for the plaintiffs’ positions? If not, it would be disingenuous to offer a solution as a reason why the contraception coverage mandate fails to pass the RFRA, only to turn around and reject that very solution soon after.
For now, what we can say about Hobby Lobby is that with respect to the battle over the Affordable Care Act, the ruling, to use Churchill’s words, “is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” More thoughts to follow….
On Wednesday, the Supreme Court released two rulings displaying varying degrees of confidence in its understanding of modern technology. In one, it held that police searches of cellphones incident to lawful arrest could not be conducted in the absence of a warrant, barring exigent circumstances. In the other, it ruled that Aereo, a streaming service enabling subscribers to view broadcast TV over the Internet, violated copyright laws because it rebroadcast network programming without paying the retransmission fees that cable providers have to pay. The need to apply old legal principles to new situations featuring emerging technology is hardly a new one, but I would argue that the scope and rapidity of modern technological change have heightened the demands placed on the justices. Wednesday’s cases highlight the ways in which the Court conceives of new technology and how its understanding shapes the scope of each ruling.
In Riley v. California, today’s Fourth Amendment ruling (decided together with U.S. v. Wurie), the justices had little difficulty fitting smartphones into Fourth Amendment doctrine governing searches incidental to lawful arrest. That’s not surprising, given the ubiquity of the devices. The least technologically aware justice, in all likelihood, either owns a smartphone or has played around with someone else’s. As such, the justices know the devices’ immense capabilities and recognize the privacy interests at stake when law enforcement officials seek to obtain evidence contained in one’s phone. It takes little imagination to conceive of smartphones as containing both “papers” and “effects” that the text of the Fourth Amendment protects against unwarranted search and seizure; as a result, a pro-privacy ruling could be supported by committed originalists as well as those favoring a more dynamic interpretative approach.
In contrast, the Aereo case (American Broadcasting Cos. v. Aereo) presented a greater challenge for the Court. Given the demographics of those likeliest to “cut the cord” and eschew cable in favor of newer, nimbler methods of obtaining programming, my hunch is that the justices are unlikely to adopt cutting-edge technology like Aereo. To their credit, they strove mightily during oral argument to get a firmer handle on what exactly Aereo did and the extent to which it was acting like a cable company, only with a magic loophole enabling it to avoid retransmission fees. (The entire business model is built around the existence of this loophole.) The justices did share a distaste for Aereo’s business model; where they differed was on whether they could close the loophole themselves (the majority position) or had to leave to Congress the job of fixing the statute that left open the loophole (the dissent). At the same time, however, there was widespread concern that a ruling against Aereo could jeopardize popular cloud storage services, such as Dropbox and Google Drive, that could also be used to stream copyrighted material. The majority addressed this scenario by taking great pains to state that the ruling against Aereo applies to Aereo only, and that judgments about the legality of other services would not be addressed in advance of legal challenges. Whether the Court can effectively limit the scope of the Aereo ruling in this manner remains an open question, but the desire to set such a limit reflects concern about the unintended consequences of ruling on less familiar technology in a way that might hinder future innovation.